I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel (GC). The Respondent filed an opposition to the exceptions.

The complaint alleges that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to reinstate the automatic dues deduction of a bargaining unit employee as required by the Statute. The Judge dismissed the complaint for want of prosecution.

Upon consideration of the Judge's decision and the entire record, we find, for the following reasons, that the complaint must be remanded to the Chief Judge, for further action consistent with this decision. [ v57 p103 ]

II. Background and Judge's Decision

This and two other unfair labor practice cases were scheduled to be tried by the General Counsel before Judge Devaney on October 13, 2000 at 9:00 a.m. in New Orleans, Louisiana.

At about 9:00 a.m., the Regional Attorney for the FLRA Dallas Region telephoned the Judge to report to him that one of the two attorneys for the General Counsel who had traveled to New Orleans to try the cases had become ill and the stricken attorney's co-counsel had taken her to the hospital. The Judge told the Regional Attorney to send co-counsel to try the cases as soon as possible.

The Regional Attorney moved for a continuance, which the Judge denied. The Judge told the Regional Attorney that the hospital staff would take care of the stricken attorney and that her co-counsel could do nothing for her. The Judge stated that it would be an unwarranted imposition on Respondent, Charging Party, the witnesses, the court reporter and the Judge not to utilize the services of the other attorney who was present in New Orleans for the express purpose of trying the cases. The Judge agreed to delay the opening of the hearing until noon.

At 11:30 a.m., the Regional Attorney again called the Judge and declined to send co-counsel to the hearing. The Judge stated that the Regional Attorney "conceded that I would have to dismiss this case for want of prosecution." Judge's Decision at 2. The Judge then opened the record, "recited the refusal of the Regional Attorney to use an available attorney to try the case," offered the Charging Party the right to proceed without the General Counsel, an offer the Charging Party declined, and dismissed the complaint. Id.

The Regional Attorney filed an interlocutory appeal under § 2423.31(c) of the Authority's Regulations. After issuing his decision dismissing these cases, the Judge denied the motion for the interlocutory appeal as moot because his decision and order in the case had dismissed the complaint.

III. Exceptions

The General Counsel excepts to the Judge's dismissal of the complaint and his denial of the motion to postpone the hearing. The General Counsel asserts that the Judge's action was based on bias and that he had prejudged the case.

The General Counsel cites the Judge's denial of the interlocutory appeal after dismissing the case, on the ground that the case was moot because of the dismissal, as further proof of the General Counsel's assertion that the Judge was biased and had prejudged the case.

The General Counsel relies on conduct by the Judge during the pre-hearing conference, which it describes as follows, to support its claim that the Judge prejudged the case:

Judge Devaney forgot about the scheduled [pre-hearing telephone] call, and Counsel for [the GC] had to place a
call to the Office of Administrative Law Judges to remind Judge Devaney of the call. Judge Devaney then called
into the conference. During the course of the conference call, Judge Devaney made remarks to the effect that he
did not care about the cases, they were de minimis, and was generally unresponsive to matters brought up by
Counsel for [the General Counsel], responding with statements to the effect of "whatever."

GC's Brief in Support of Exceptions at 5.

The General Counsel also asserts that the Judge's conduct during the morning of the scheduled hearing demonstrated prejudice and a lack of impartiality, and showed that the Judge believed that litigation of the cases was a waste of his time and effort. This conduct included the Judge being "entirely unsympathetic" to the ill attorney's situation, id. at 7, and his response to the Regional Attorney's position. The General Counsel asserts that the Regional Attorney told the Judge that it would not be appropriate to leave the attorney alone during a serious health crisis in a strange hospital in a strange city with no one to be there to support her or to keep the Office of General Counsel apprised of her condition.

According to the General Counsel, the Judge stated that the co-counsel was not a nurse and could not do anything for her associate and that if she did not immediately appear to try the cases, he would dismiss them. A subsequent call to the Judge by the Regional Attorney resulted in the Judge's statement that the General Counsel "was wasting his [the Judge's] time, that [co-counsel] could do nothing for [her associate], and that she should get her fanny to the courthouse immediately to try the cases." Id. According to the General Counsel, it was later discovered that the Judge's remarks were made in front of the Charging Party representative and Respondent's counsel.

The General Counsel requests that the dismissal be reversed and the complaint reinstated, and that the case be remanded to the Chief Judge for assignment to a different judge. The General Counsel contends that the [ v57 p104 ] Judge's failure to respond to the interlocutory appeal prior to issuing his decision "denied Counsel for the General Counsel the opportunity to contest his ruling [o]n the Interlocutory Appeal as he determined that the matter was moot since he had already rendered his decision." Id. at 13. The General Counsel submits that "it and the Charging Party have been unduly prejudiced by [the Judge's] decision to dismiss the case without addressing the Interlocutory Appeal and then seeking review by the Authority." Id. at 14.

IV. Opposition

The Respondent claims that the General Counsel's exceptions concerning the Judge's failure to postpone and his dismissal "exaggerate[]" statements made by the Judge during the pre-hearing conference. Respondent's Opposition at 6. The Respondent also contends that even if the Judge's statements demonstrate that he was "impatient or annoyed," they do not demonstrate bias that would require reversal of the dismissals for want of prosecution. Id. at 6-7.

V. Analysis and Conclusion

Section 2423.31(a) of the Authority's Regulations sets the standard for conduct of an unfair labor practice hearing by an administrative law judge. It provides, in pertinent part, that the judge "shall conduct the hearing in a fair, impartial, and judicial manner." In the particular circumstances, the General Counsel's request for postponement was not only reasonable, but compelling. We find the Judge's refusal to grant the motion was so extreme as to be unfair, and we thus conclude that the Judge's dismissal of this case did not meet the standard for conduct set out in the Regulations.

The Judge refused to honor a request to postpone the hearing based on a genuine medical emergency although he knew that the stricken attorney and her co-counsel were away from home, in a hospital emergency room, and that the stricken attorney had an undiagnosed ailment. The pleas to postpone the hearing by the Regional Attorney and co-counsel, who was attending her stricken colleague, were clear and persuasive. The Judge's refusal to postpone the hearing demonstrates his complete failure to deal with the request in a fair, judicial manner taking into account the seriousness of the situation.

Moreover, the Judge's statement that co-counsel could do nothing more for her colleague and should hurry to the hearing was factually incorrect. The stricken attorney had no other family or friends to attend her during her crisis. Therefore, her co-counsel was needed to help her with any decisions that might be required, and to keep her out-of-town family and colleagues informed about her condition.

Finally, there is no suggestion that postponement would have prejudiced any of the parties. The Respondent made no such assertion at the hearing, nor is there any such allegation in the Respondent's opposition to exceptions. The sole basis given by the Judge for his refusal to postpone was inconvenience to him, the parties, the witnesses and the court reporter.

We conclude that the Judge did not conduct the hearing "in a fair, impartial, and judicial manner" as required by the Regulations. Moreover, we find his conduct inappropriate and intemperate. Consequently, we vacate his dismissal of the complaint for failure to prosecute, and remand the matter to the Chief Judge for assignment to a different administrative law judge. [n3] In so doing, we take this opportunity to remind the Judge of his obligations to conduct hearings in accordance with our Regulations. In addition, we note that this is not the first time the Judge has failed to conform to minimal standards of judicial behavior, see United States Dep't of Veterans Affairs, Medical Ctr., Jamaica Plain, Mass., 51 FLRA 871, 877 (1996), and we caution the Judge to avoid repeating the actions we find unacceptable today. [n4]

VI. Order

The complaint in case no. DA-CA-00106 is reinstated, and the matter is hereby remanded to the Chief Administrative Law Judge for action consistent with this decision. [ v57 p105 ]

Office of Administrative Law Judges

UNITED STATES DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT
WASHINGTON, D.C.
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3475
Charging Party

Case No. DA-CA-00106

Mary Larson, Esquire
Shannon W. Rivers
For the General Counsel

Mary C. Merchant
For the Respondent

Dorothy Pleasant
For the Charging Party

Before: WILLIAM B. DEVANEY
Administrative Law Judge

DECISION

Statement of the Case

This case was set for hearing on October 13, 2000, in New Orleans, Louisiana, seriatim following Case No. DA-CA-90742. Counsel for Respondent, President of the Charging Party, witnesses, Court Reporter and the undersigned were present prior to the scheduled time of the hearing. At about 0900, the Regional Attorney, Ms. Charlotte A. Dye, called the undersigned to report that one of the attorneys for General Counsel, Ms. Larson, had become ill and the other attorney for General Counsel, Ms. Rivers, had taken her to a hospital. The undersigned told the Regional Attorney to send Ms. Rivers to try the cases as soon as possible. The Regional Attorney moved for a continuance which was denied. The undersigned emphasized to the Regional Attorney that the hospital staff would take care of Ms. Larson; that Ms. Rivers could do nothing for her; and that it would be an unwarranted imposition on Respondent, Charging Party, the witnesses, the Court Reporter and the undersigned not to utilize the services of the other attorney, Ms. Rivers, who was present in New Orleans for the express purpose of trying these cases. It was agreed that the opening of the hearing would be delayed until noon. At about 11:30 a.m. the Regional Attorney called and steadfastly refused to send Ms. Rivers to the hearing and conceded that I would have to dismiss this case for want of prosecution. I went on the record, recited the refusal of the Regional Attorney to use an available attorney to try the case, offered Charging Party the right to proceed without the General Counsel, which Ms. Pleasant, President of Local 3475, declined and, because General Counsel refused to prosecute, dismissed the complaint.

________________________
WILLIAM B. DEVANEY
Administrative Law Judge

Footnote # 1 for
57 FLRA No. 28
- Authority's Decision

This corrects the Judge's inadvertent error in the caption specifying the Agency, rather than the Activity, as the Respondent.

Footnote # 2 for
57 FLRA No. 28
- Authority's Decision

This case was scheduled for hearing with two other cases, DA-CA-90742 and DA-CA-00452. Decisions in those cases are
rendered today as well, as 57 FLRA No. 29 and 57 FLRA No. 30.

Footnote # 3 for
57 FLRA No. 28
- Authority's Decision

In view of this decision, we find it unnecessary to pass on the General Counsel's exception that the Judge erred by failing to
rule on its interlocutory appeal until after he had dismissed the complaint. We note, however, that under § 2423.31(c)(2) of the
Authority's Regulations, the General Counsel could not properly have appealed a denial of the interlocutory appeal even if the
Judge had acted on the appeal before he issued the decision and recommended order.